Popp v. Hardy, 10A01-8612-CV-346

CourtCourt of Appeals of Indiana
Citation508 N.E.2d 1282
Docket NumberNo. 10A01-8612-CV-346,10A01-8612-CV-346
PartiesJames L. POPP and Ruth Sipes as Co-Executors of the Estate of Louis G. Popp, Plaintiffs-Appellants, v. Claude E. HARDY and Rose J. Hardy, Defendants-Appellees.
Decision Date08 June 1987

Page 1282

508 N.E.2d 1282
James L. POPP and Ruth Sipes as Co-Executors of the Estate
of Louis G. Popp, Plaintiffs-Appellants,
Claude E. HARDY and Rose J. Hardy, Defendants-Appellees.
No. 10A01-8612-CV-346.
Court of Appeals of Indiana,
First District.
June 8, 1987.

Page 1283

Maurice A. Byrne, Jr., Fox & Smith, Jeffersonville, for plaintiffs-appellants.

David D. Nachand, Jeffersonville, for defendants-appellees.

NEAL, Judge.


Plaintiffs-appellants, James L. Popp and Ruth Sipes, as Co-Executors of the Estate of Louis G. Popp (Popp), appeal an adverse summary judgment rendered by the Clark Superior Court No. 2 in their suit to establish a prescriptive easement, which judgment was in favor of defendants-appellees, Claude E. Hardy and Rose J. Hardy (Hardy).

We reverse.


On March 8, 1985, Popp filed his complaint to enjoin interference with his prescriptive easement across Hardy's land: Count I proceeded on a prescriptive easement theory; Count II claimed an easement of necessity; Count III advanced an estoppel theory; and Count IV stated a deed reservation theory. In addition to the

Page 1284

injunction, Popp sought damages. Popp died on March 19, 1985, and James L. Popp (James) and Ruth Sipes, his children, as co-executors of his estate, were substituted as party plaintiffs on August 30, 1985. Hardy filed an answer in denial and thereafter filed a motion for summary judgment supported by the depositions of James and Ruth Sipes, and also by certified copies of a complaint and a decree in a quiet title action captioned "Bertha Earl v. Isaac M. Perry, et al.", the decree having been entered by the Clark Circuit Court on October 18, 1966. Popp's response to Hardy's motion for summary judgment contained the affidavits of Daisy Schubnell, Albert Lee Fisher, Ethel A. Whalen, Juanita Ann Speer, James E. Shields, Jr., and James. Popp also filed a motion for summary judgment, supported by the same affidavits.

The trial court granted Hardy's motion for summary judgment and denied Popp's. Relative to issues on appeal, the trial court found that Popp's use of the right-of-way was permissive, that the Bertha Earl quiet-title decree was res judicata, and that the alleged easement was insufficiently described.


Popp presents five issues on appeal. Restated by us into three issues, they are: did the evidentiary material filed in trial court present a genuine issue of material fact on the following issues:

I. Was the Bertha Earl quiet-title decree res judicata, and thus a bar to Popp's suit;

II. Was the alleged prescriptive easement sufficiently described; and

III. Was the use of the right-of-way permissive, and thus has foreclosed Popp's claim.


The rules governing summary judgment are well settled. The trial court, and the reviewing court, must consider the evidentiary material most favorable to the party opposing the motion, and resolve all doubts against the movant. Indiana University Hospitals v. Carter (1983), Ind.App., 456 N.E.2d 1051. Even where the facts are undisputed the ability to draw from these facts conflicting inferences, which would alter the outcome, makes summary judgment inappropriate. Carrell v. Ellingwood (1981), Ind.App., 423 N.E.2d 630, trans. denied. The evidence may not be weighed. Id. The burden is on the movant to demonstrate the absence of a dispute of material facts. Id.

However, the non-moving party may not simply rest on his pleading. When the moving party establishes the lack of genuine issue of material fact, the opposing party must go forward and contest the motion by setting forth specific facts which show that there is a genuine factual issue. Criss v. Bitzegaio (1981), Ind., 420 N.E.2d 1221.

A summary judgment proceeding is not a trial by affidavits, nor can it be used as an abbreviated trial. Carrell, supra.


The evidentiary material before the trial court most favorable to Popp is as follows. Since the late 1920's or early 1930's, Popp owned a 15-acre tract of land, known locally as the Koerner place, which he had acquired from his father. Hardy owned property denominated locally as the Whalen tract and the Creamer tract. For at least 53 years, from 1928 until 1981, Popp and his son, James, used a 20-foot-wide roadway across the Whalen and Creamer tracts which was described as extending along survey lines 148-149 and 166-167 of the Illinois Grant in Union Township, Clark County. Popp's father had used it since 1897. Popp used the right-of-way under a claim of right, openly, visibly, continuously, notoriously, and adversely to Hardy and his predecessors in title for a period of 53 years, and such use was with their knowledge and acquiescence until 1981. Popp used the road five or six times a year for access to the farm for plowing, and the planting and harvesting of corn, soybeans, and hay. Neither Hardy nor his predecessors in title complained of or objected to Popp's use of the right-of-way, and they

Page 1285

never asked him to stop using it. Popp never asked for nor was he ever given permission. The relationship between Hardy and his predecessors in title and Popp was friendly, and they did not talk of, nor dispute, the right-of-way. In 1959, highway I-65 was established and severed Popp's land. Prior to that time, four possible means of ingress and egress existed, but thereafter, there remained only one--across Hardy's property. Without the right-of-way the 15 acres was landlocked, though a stream called Muddy Fork Creek could have been bridged at great expense.

Many of the above facts are derived from James's affidavit and his deposition. However, his evidence was corroborated in a number of important particulars by others. Juanita Ann Speer, the widow of one predecessor in title, John L. Elrod, and the daughter-in-law of other predecessors, Carl and Myrtle Elrod, confirmed that Popp had farmed the 15 acres, and, in the process, traveled back and forth across the roadway to plow, plant, cultivate, and harvest. Popp always used the right-of-way when needed without notice, request, or permission, and the Elrods never complained of, interrupted, or questioned the use. Speer's personal knowledge covered the period from 1955 to 1967. The Elrods knew of the use, but there was no agreement or permission, it was "something that just was always done." Record at 97. Speer stated that when Carl Elrod divided his farm among his family, she saw a sketch or map prepared by him upon which was marked "the Louis G. Popp right-of-way." Record at 97. James E. Shields, Jr., an erstwhile employee of Popp, confirmed the adverse use from the late 1950's until 1968. Daisy Schubnell stated that, to her knowledge, Popp traveled the road to farm along the east side of the Whalen property in the 1930's openly, continuously, and without interruption. Albert Lee Fisher added in his affidavit that, to his knowledge, Popp used the road regularly, openly, and publicly to get to his farm from 1926 to 1932, and from 1947 to 1980. Ethel A. Whalen stated that Popp used the road openly, visibly, continuously, and without interruption from the Great Depression until the Whalen tract was sold in 1943. Other facts will be set forth under appropriate headings.


ISSUE I: Res judicata

The trial court held that the Bertha Earl quiet-title decree entered on October 18, 1966, was res judicata and foreclosed any claim by Popp prior to that date. Because 20 years had not elapsed since then, any new right of prescriptive easement would have not yet matured. On September 8, 1965, Bertha Earl filed a complaint in the Clark Circuit Court entitled "Complaint To Quiet Title Against The World" against Isaac M. Perry and a large number of named persons, including Carl and Myrtle Elrod. Record at 60. The complaint, in the classic style familiar to older law practitioners, also named as defendants the children, descendants, heirs, unknown husbands and wives, widows and widowers, creditors, legatees, devisees, etc., of the named defendants, as well as all persons who might assert any title, claim, or interest in and to the real estate, all of whom were unknown to the plaintiff. Specifically, the...

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